Watson v R (Jamaica)  UKPC 34 (07 July 2004)
Privy Council Appeal No. 36 of 2003
Lambert Watson Appellant
The Queen Respondent
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th July 2004
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Mr. Justice Edward Zacca
[Delivered by Lord Hope of Craighead]
The statutory background
"2. Whosoever shall be convicted of murder shall suffer death as a felon.
3(1) Upon every conviction for murder, the Court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted, shall, after sentence, be confined in some safe place within the prison, apart from all the other prisoners."
In 1958 section 3(1) of the principal Law was amended by inserting at the end thereof the following paragraph:
"Where by virtue of this subsection a person convicted of murder is sentenced to death, the form of the sentence shall be to the effect only that he is to 'suffer death in the manner authorized by the law.'"
The legislation was still in this form immediately before 6 August 1962, which was the date on which Jamaica attained independence under the Jamaica Independence Act 1962.
"To consider and report within a period of eighteen (18) months whether liability under the Criminal Law of Jamaica to suffer death as a penalty for murder should be abolished, limited or modified and if so, to what extent, by what means and for how long, and under what conditions persons who would otherwise have been made to suffer capital punishment should be detained and what changes in the existing law and the penal system would be required."
"The Committee is likewise of opinion that death as a penalty for murder should be abolished. The Committee feels strongly however that such a step should be undertaken as part of a comprehensive system of penal reform which should commence without delay. This opinion finds support in the concern expressed by many witnesses who appeared before us. Many spoke about the inadequacies in the penal system and about some of the existing conditions in penal institutions which themselves contribute to crime. The introduction of a system of penal reform is likely to require careful research and study until such a scheme can be undertaken. The Committee recommends that, as an interim measure, consideration be given to modifying the circumstances under which capital punishment is now imposed as a penalty for murder."
"Under the existing law in relation to homicide the death penalty is imposed on a conviction for murder.
The Bar Association of Jamaica, at an Extraordinary General Meeting voted against a Resolution for the total abolition of the death penalty, but made certain recommendations as to the retention of the death penalty for certain murders.
The Government has decided, after considering the views of the Bar Association and others, to make certain changes in the law relating to homicide."
"Murder not falling within subsection (1) is non-capital murder."
"(1) Every person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A) shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners.
(1A) Subject to subsection (5) of section 3B, a person who is convicted of non-capital murder shall be sentenced to death if before that conviction he has
(a) whether before or after 14 October 1992 been convicted in Jamaica of another murder done on a different occasion; or
(b) been convicted of another murder done on the same occasion."
The mandatory death sentence the constitutionality of which is in issue in this case was passed under section 3(1A) (b).
The constitutional provisions
"(1) As from the sixth day of August, nineteen hundred and sixty-two (in this Act referred to as 'the appointed day'), Her Majesty's Government in the United Kingdom shall have no responsibility for the government of Jamaica.
(2) No Act of the Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to Jamaica as part of the law thereof; and as from that day the provisions of the First Schedule to this Act shall have effect with respect to the legislative powers of Jamaica."
Paragraph 6 of the First Schedule provides:
"(1) Nothing in this Act shall confer on the legislature of Jamaica any power to repeal, amend or modify the constitutional provisions otherwise than in such manner as may be provided for in these provisions.
(2) In this paragraph 'the constitutional provisions' means the following, that is to say
(a) this Act;
(b) any Order in Council made before the appointed day (whether before or after the passing of this Act) which made or makes provision in respect of Jamaica in pursuance of the section five of the West Indies Act 1962.
(c) Any law, or instrument made under a law, of the legislature of Jamaica made on or after the appointed day which amends, modifies, re-enacts with or without amendment or modification, or makes different provision in lieu of, any provisions of this Act, of any such Order in Council, or of any such law or instrument previously made."
"All laws which are in force in Jamaica immediately before the appointed day shall (subject to amendment or repeal by the authority having power to amend or repeal such law) continue in force on and after that day, and all laws which have been made before that day but have not previously been brought into operation may (subject as aforesaid) be brought into force, in accordance with any provision in that behalf, on or after that day, but all such laws shall, subject to the provisions of this section, be construed, in relation to any period beginning on or after the appointed day, with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of this Order."
Section 2 provides:
"Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
Section 48(1) provides that, subject to the provisions of the Constitution, Parliament may make laws for the peace, order and good government of Jamaica, and sections 49 and 50 give power to Parliament to alter the Constitution subject to the conditions which these provisions lay down. The effect of section 2 is that the Constitution is the supreme law of Jamaica.
"(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contradiction of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day."
"(8) Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.
(9) For the purposes of subsection (8) of this section a law in force immediately before the appointed day shall be deemed not to have ceased to be such law by reason only of
(a) any adaptations or modifications made thereto by or under section 4 of the Jamaica (Constitution) Order in Council, 1962, or
(b) its reproduction in identical form in any consolidation or revision of laws with only such adaptations or modifications as are necessary or expedient by reason of its inclusion in such consolidation or revision."
(a) Does the fact that murders are classified by the 1992 Act into capital and non-capital save the mandatory death penalty from the conclusion that it is "inhuman or degrading punishment or other treatment" within the meaning of section 17(1) of the Constitution?
(b) Was the law requiring the sentence of death to be passed on the appellant a law in force immediately before the appointed day within the meaning of section 26(8) of the Constitution (was it an existing law, in other words), with the result that nothing contained in it or done under its authority can be held to be inconsistent with or in contravention of section 17(1)?
(c) If so, can its provisions be modified under section 4(1) of the Jamaica (Constitution) Order 1962 so as to bring its provisions into conformity with section 17(1)?
(d) If the mandatory death penalty cannot be declared incompatible with section 17(1) or modified under section 4(1), is it nevertheless unlawful as a violation of the doctrine of the separation of powers?
The first issue: inhuman punishment
"The question that therefore arises in the instant case is whether the slaying of two persons per se would be 'sufficiently discriminating to obviate inhumanity' in the mandatory sentence of death. If this Court is to adhere to the principles set down by the Privy Council in the trilogy of cases, then I would have to conclude that the answer to that question is 'no' in spite of the pressing social conditions that would seems to make it so. Perhaps the best approach in keeping with the Board's interpretation of section 17(2) of the Constitution is to determine the correctness of the death penalty on the background of the particular circumstances of the case and the antecedent history of the appellant, including the factors which led him to commit these offences."
The second issue: existing law
"the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
That declaration provides the background to the interpretation of the provisions which are set out in section 26(8) and section 26(9).
"All the judges below have treated [section 20(8)] as declaring or intended to declare the common law on the subject. Their Lordships agree. It is unnecessary to resort to implication for this intendment, since the Constitution itself expressly ensures it. Whereas the general rule, as is to be expected in a Constitution and is here embodied in section 2, is that the provisions of the Constitution should prevail over other law, an exception is made in Chapter III. This chapter, as their lordships have already noted, proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming into force of the Constitution the individual enjoyed. Accordingly section 26(8) in Chapter III provides as follows "
Judgment of Lord Bingham of Cornhill,
Lord Nicholls of Birkenhead, Lord Steyn and
Lord Walker of Gestingthorpe
(1) that the imposition of the mandatory death penalty on the appellant subjected him to inhuman or degrading treatment (paragraph 35);
(2) that section 3(1A) of the Offences against the Person Act 1864, as inserted by section 3(b) of the Offences against the Person (Amendment) Act 1992, under which the death penalty was passed on the appellant, was, subject to section 26(8) of the Constitution of Jamaica, incompatible with section 17(1) of that Constitution (paragraph 35);
(3) that section 3(1A) of the 1864 Act was not a law in force immediately before the appointed day and is not protected by section 26(8) of the Constitution on any reading of that provision (paragraph 47);
(4) that section 3(1A) must now be read as if for the word "shall" there had been substituted the word "may" (paragraph 49); and
(5) that the appeal should be allowed, that the sentence of death passed on the appellant should be set aside and that his case should be remitted to the trial judge so that he may decide what sentence should be passed for the crimes of which he was convicted (paragraph 50).
We should, however, make plain that we would for our part reach the conclusions which we have numbered (4) and (5) even if section 3(1A) were a law in force immediately before the appointed day. Our reasons for holding this opinion very largely appear from our dissenting opinions in Matthew v The State  UKPC 33 and Boyce and Joseph v The Queen  UKPC 32, and may therefore be stated more briefly than would otherwise be appropriate in an appeal of such obvious importance.
"In particular, it is submitted that no question of modification under section 4 of the Jamaica (Constitution) Order in Council 1962 arises. This is because the mandatory death sentence prescribed by section 3(1) of the Offences against the Person Act is saved by section 26(8) of the Constitution. Section 3(1) is therefore not inconsistent with the Constitution and there is nothing to bring 'into conformity with' the provisions of the 1962 Order in Council. The Order includes the Constitution, which is contained in a schedule to it."
This is in all essentials the same argument as was advanced by the respondent States in Matthew and Boyce and Joseph. The majority accepted the argument in those cases, but we rejected it and would reject it in this case also, for very much the same reasons as have led us to dissent in the other cases.
"No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence."
The respondent had been tried by a competent court for a criminal offence, and had been acquitted of murder. It was, of course, accepted that he could not be tried for murder again. But it was held, unsurprisingly, that he had been neither convicted nor acquitted of manslaughter and that there was accordingly no objection to retrial of the respondent for manslaughter under section 20(8) of the Constitution. The contrary argument for the respondent, "based on high technicalities", was rejected. It is in that context that Lord Devlin, delivering the judgment of the Board, made the observations, at pp 247-248, which Lord Hope has quoted in paragraph 41.